Yasmin v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 773
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yasmin v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 773
File number: SYG 1892 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 August 2024 Catchwords: MIGRATION LAW – Refusal to waive no further stay condition 8503 - 'compelling and compassionate' circumstances – procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) s 41(2A)
Migration Regulations 1994 (Cth) regulations 2.05(4), 2.05(4AA)
Cases cited: Cheema v Minister for Immigration and Citizenship [2011] FCA 121
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 21 August 2024 Place: Parramatta Solicitor for the Applicants: In person Solicitor for the Respondent: Ms Kelly (Sparke Helmore) ORDERS
SYG 1892 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: REBEKA YASMIN
First Applicant
HABIBUR AHMED
Second Applicant
RATIN HASNAT RAZIN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First and Second Applicant are to pay the Respondent’s costs fixed in the sum of $7000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicants are a family unit who are citizens of Bangladesh. The first applicant is the spouse of the second applicant, who are the parents of the third applicant, who is a minor.
The applicants arrived in Australia on 24 July 2013 holding Visitor visas (Subclass 600). These were subject to an 8503 “No Further Stay” condition. On 12 June 2019, some six years later, the first applicant lodged an application for a waiver of the 8503 condition, on the basis that she was “not fit for travel” due to her pregnancy. The second and third applicants also applied for a waiver on the same basis citing the first applicant’s inability to travel.
On 12 July 2019, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) refused the applicants’ applications for a waiver of the No Further Stay condition 8503.
The applicants now seek judicial review of the delegate’s decisions in this Court. For the reasons set out below, the application must be dismissed.
THE DELEGATE’S DECISIONS
The decision records of the delegate consisted of three decisions, one for each of the applicants. They are all dated 12 July 2019. However, while the decision records sets out three separate decisions, they are a repetition of one another.
In each decision the delegate articulated the applicants’ claims as:
The clients have jointly requested a waiver of the no further stay condition 8503 because Ms Yasmin is pregnant and states she is not fit for travel.
In each decision the delegate affirmed that they were a decision maker under s 41(2A) of the Migration Act 1958 (Cth) (“the Act”) and set out the information and evidence they had considered in reaching their decision, namely:
·relevant legislation contained in the Migration Act and Migration Regulations 1994
·information contained in the Department’s Procedures Advice Manual 3
·documents and information provided by the applicant(s)
·relevant information held on Departmental files.
The delegate found, for each of the applicants, that the circumstances for a waiver of the No Further Stay condition 8503 were not met. The delegate then set out the reason, namely, that neither sub-regs 2.05(4) or 2.05(4AA) of the Migration Regulations1994 (Cth) (“Regulations”) have been met.
The delegate then stated her reasons for why the applicants did not meet sub-reg 2.05(4) of the Regulations specifically, whether the circumstances were outside their control, and whether the circumstances were compelling and compassionate. In respect of whether the circumstances were outside the applicants’ control, the delegate said:
I do not find that Ms Yasmin’s pregnancy is a circumstance outside of the clients’ control. I do however accept that Ratin Razin is a minor child of 11 and all his circumstances are outside of his control.
In considering whether the circumstances were compelling and compassionate, the delegate explained the concepts of “compelling” and “compassionate” circumstances and found:
(a)Based on the information provided, the delegate was not satisfied that the client would not be able to undertake travel at any point in the following months and did not find this to be sufficiently forceful to waive the condition.
(b)The applicant mother’s pregnancy did not represent a barrier to travel for the applicant father nor the applicant child. The delegate did not find their circumstances compelling.
(c)The applicant mother, if unable to undertake travel in the following months, would be able to apply for a bridging visa in order to remain lawful whilst making arrangements to leave.
(d)The applicants’ circumstances were not sufficiently forceful to waive the condition and, therefore, the delegate did not find the circumstances compelling.
The delegate reiterated its finding that the circumstances in sub-reg 2.05(4) and 2.05(4AA) of the Regulations were not met. Accordingly, the delegate refused the request by the applicants for a waiver of condition 8503.
GROUNDS OF JUDICIAL REVIEW
The grounds for judicial review raised by the applicants are contained in the Originating Application filed with the Court on 25 July 2019. The two grounds are:
Ground One:
The respondent has failed to apply the correct test pursuant to Sub section 41(2A) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant's claims under sub section 41(2A) of the Migration Act 1958 (Cth), the delegate of the minister explicitly failed to disaggregate the statutory formulae under regulation 2.05(4).
Ground Two:
The respondent denied procedural fairness to the applicant.
THE APPLICANTS’ SUBMISSIONS
The applicants appeared before the Court unrepresented. The first applicant appeared on her own behalf and on behalf of the second and the third applicant. She was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her. The Court also ensured the first applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicants in support of their case. The first applicant told the Court that they have problems in Bangladesh. That is why they came to Australia. Further, their son born in Australia suffers from autism. The third applicant, their oldest child is undertaking Year 12 studies. The first applicant was unable to make any submission in relation to any jurisdictional error in the delegate’s decision.
At the conclusion of the respondent’s oral submissions, the first applicant was asked if they wished to state anything in reply. She repeated that they have problems in Bangladesh.
THE RESPONDENT’S SUBMISSIONS
Ground one
The respondent submits that the delegate correctly set out the relevant legislative framework under the Regulations and found that the applicants’ circumstances were not sufficiently forceful to waive the condition and they were not compelling.
The respondent submits that the requirements of the Regulations are cumulative whereby the applicants’ circumstances had to meet all requirements. The respondent submits that the delegate’s finding that the first applicant’s pregnancy was not out of her control constitutes an “independent and sufficient ground for upholding the decision”.
The respondent further submits that where the Court is to find that the delegate failed to comply with the Regulations, any failure makes no difference to the decision made. The respondent highlighted that the first applicant’s pregnancy, having formed the basis of the decision, was not out of her control and would inevitably lead to the same outcome.
Ground two
The respondent submits that in the absence of particularised assertions, the applicants’ claim that they were denied procedural fairness is meaningless. The respondent submits that this ground does not establish any jurisdictional error and is vague, warranting dismissal on the latter basis.
CONSIDERATION OF THE GROUNDS OF REVIEW
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Ground one is an assertion of a failure to apply the correct test pursuant to s 41(2A) of the Act by explicitly disaggregating the statutory formula under reg 2.05(4) of the Regulations. That requires the delegate to find “compelling and compassionate” circumstances that have developed that were outside the person’s control and resulted in a major change to the person’s circumstances.
The Court is satisfied that the requirements under reg 2.05(4) of the Regulations are cumulative in nature as evidenced by the use of the word “and” between the various sub-regulations. Thus, a failure to meet any one of the criteria under reg 2.05(4) of the Regulations will mean that a waiver will not be granted;( see: Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [16] – [17]).
Thus, the finding that the first applicant’s pregnancy was not a circumstance outside of her control was enough to be fatal to the application for the waiver. The delegate found however, the first applicant’s pregnancy was a matter outside the third applicant’s (a minor child of 11 years) control. This indicates that the delegate was fully aware of the relevant test and applied it in a considered and correct manner.
Notwithstanding this, the delegate went on to consider if the first applicant’s circumstances were compelling and compassionate. The delegate noted that the first applicant had supplied a medical certificate dated 16 May 2019 confirming she was eight weeks pregnant. The medical certificate indicated the first applicant had a history of PV bleeding, a past history of miscarriage and that travel would not be safe until after the birth of the baby.
The delegate found that the medical certificate was not sufficient to indicate the first applicant would be unfit to travel at any point in the following months. Further, the first applicant’s pregnancy did not represent a barrier to the second and third applicants (being the first applicant’s husband and child) travelling. Accordingly, the delegate found they were not satisfied as to the existence of “compelling and compassionate” circumstances.
The Court accepts the respondent’s submission that the applicants have not challenged the finding that the first applicant’s pregnancy was outside of her control. Thus, any challenge to the finding that there were not “compelling and compassionate” circumstances makes no difference as the result would be the same;(see: Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82 at [30]). Ground one has no merit.
Ground two is an unparticularised bare assertion of a denial of procedural fairness. The ground lacks any particulars. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal;(see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). A review of the decision record and associated documents does not reveal any denial of procedural fairness. Ground two has no merit.
As the applicants are unrepresented, the Court has perused the decision record and associated documents. The Court is unable to detect any unarticulated jurisdictional error. The application must be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 August 2024
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